EXHIBIT 10.1
TRANSITION AGREEMENT
This
Transition Agreement (“Agreement”) is entered into as
of November 17, 2005, by and between Deluxe Corporation, a
Minnesota corporation (“Deluxe”), and Ronald E. Eilers
(“Eilers”), an individual residing in the State of
Minnesota.
WHEREAS,
Eilers has served as the President and Chief Operating Officer of
Deluxe since December 2000, and has been a member of the Board of
Directors of Deluxe (the “Board”) since August,
2000;
WHEREAS,
Lawrence J. Mosner (“Mosner”), the Company’s
Chairman and Chief Executive Officer (“CEO”), is
voluntarily retiring from his officer and director positions with
Deluxe, effective upon the election by the Board of Mosner’s
successor as CEO of Deluxe;
WHEREAS,
Eilers has agreed to succeed Mosner as CEO for the period
commencing with Eilers’ election by the Board as CEO through
December 31, 2006, and has further agreed to assist his successor
as CEO (the “new CEO”) and to retire voluntarily from
his officer and director positions with Deluxe upon the election of
his successor as CEO;
WHEREAS,
the Board wants to recognize Eilers’ many years of loyal
service to Deluxe and to provide for the smooth transition of the
CEO position;
WHEREAS,
the parties desire to set forth all matters regarding Eilers’
retirement as CEO, resignation from the Board and his service as a
consultant to the new CEO; and
WHEREAS,
the Board believes it is in the best interests of Deluxe’s
shareholders to enter into this Agreement.
NOW
THEREFORE, in consideration of the premises and the covenants
herein, the sufficiency of which is hereby acknowledged, Eilers and
Deluxe agree as follows:
1.
CEO Election and Retirement as CEO .
(a)
CEO Election . Effective upon election by
the Board and continuing until the “CEO Retirement
Date” (as defined below), Eilers shall serve as CEO of Deluxe
and shall be an executive officer of Deluxe and have such duties
and responsibilities customarily associated with such
position.
(b)
Retirement as CEO . Effective on the
earlier of: (i) December 31, 2006, and (ii) the date on which
Eilers’ successor as CEO is elected by the Board (the
“CEO Retirement Date”), Eilers shall retire as
Deluxe’s CEO, from all other officer positions he currently
holds with Deluxe and its affiliates and from all director
positions he holds with Deluxe and its affiliates. Effective upon
the “Full Retirement Date” (as defined below), the
Executive Retention Agreement dated December 18, 2000, between
Deluxe and Eilers (the “Retention Agreement), shall terminate
and be of no further force or effect.
(c)
Severance Agreement . Deluxe and Eilers are
parties to that certain Severance Agreement, effective March 1,
2001, which provides for certain benefits to Eilers upon the
termination of his employment as described therein (the
“Severance Agreement”). Deluxe and Eilers agree that in
Eilers’ new role as CEO the Severance Agreement shall no
longer be applicable and the Severance Agreement is therefore
terminated effective upon execution of this Agreement.
2.
Transition of CEO Duties . After the CEO
Retirement Date and for a period ending no later than December 31,
2006, the final date of which is to be determined by the new CEO
(the “Transition Period”), Eilers shall assist the new
CEO in the transition of his duties as CEO in a diligent and
business-like manner as and when reasonably requested by the new
CEO, pursuant to the terms and conditions set forth
below:
(a)
Duration . Eilers shall be available to devote his full time
and effort at the Company headquarters to his transition duties
through the end of the Transition Period, as and when requested by
the new CEO; the last day of Eilers’ employment with Deluxe
in this capacity is referred to herein as the “Full
Retirement Date.” Deluxe shall provide Eilers with two weeks
advance written notice of the Full Retirement Date.
(b)
Duties . Such assistance may include, but not necessarily be
limited to, at the direction and request of Deluxe’s new CEO:
(i) representing Deluxe with key industry, civic and philanthropic
constituents, (ii) assisting Deluxe’s new CEO in maintaining
and developing business relationships with key strategic partners,
(iii) regularly meeting with the new CEO to review progress toward
the refinement and execution of Deluxe’s strategy, and (iv)
assisting the new CEO in the recognition and motivation of
employees in pursuing Deluxe’s strategy.
(c)
Reporting Relationship . During the
Transition Period, Eilers shall report to Deluxe’s new
CEO.
(d)
Manner of Performance . During the
Transition Period, Eilers shall perform all services and duties
that reasonably may be required of him pursuant to the terms
hereof, to the reasonable satisfaction of Deluxe. Eilers shall not
take any action that would be adverse to Deluxe’s business
interests or that may subject Eilers, Deluxe or any of its
affiliates to civil or criminal liability. In performing services
hereunder, Eilers agrees to comply in full with all applicable
laws, ethical standards, rules and regulations, and with
Deluxe’s conflict of interest policies. Eilers represents
that, on the date of this Agreement, he does not have any interest
in any entity that would violate Deluxe’s conflict of
interest policies or materially interfere in any manner with the
performance of services under this Agreement.
3.
Compensation Until the Full Retirement Date .
(a)
Salary, Bonus and Executive Benefits
. Eilers shall receive an annual salary of
$625,000, commencing with his election as CEO by the Board, to his
Full Retirement Date. Eilers shall also be entitled to receive a
bonus payable for 2005 and 2006 performance and other compensation
to which he is entitled hereunder through the Full Retirement Date.
Eilers’ target and award under the Annual Incentive Plan for
2005 shall be pro rated for 2005 based on the number of days during
2005 Eilers was employed in each position with Deluxe. Eilers shall
continue to receive the standard executive officer benefit of
Company-paid reimbursements for financial and tax planning for
2005, in an aggregate grossed-up amount not to exceed $16,000 for
2005. Eilers shall receive the standard executive officer benefit
of Company-paid reimbursements for financial and tax planning for
2006, in an aggregate grossed-up amount not to exceed $16,000 for
2006, such reimbursements to be payable to Eilers on December 31,
2006. On the Full Retirement Date, all compensation related to
Eilers’ employment with Deluxe under all other agreements and
arrangements, including all perquisite programs, shall cease, and
no further compensation shall be due from or paid by Deluxe to
Eilers, except (i) as contemplated in this Agreement, (ii) pursuant
to Deluxe employee pension or retirement plans not otherwise
referenced in this Agreement in which Eilers is currently
participating and which provide for post-retirement rights to
participants, (iii) or as otherwise required by law.
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(b)
Taxes and Withholding . To the extent
required by the federal and applicable state income tax laws and
regulations, Deluxe shall withhold and deduct from all compensation
paid to Eilers under this Agreement, including the retention bonus
payment described in Section 5(a) hereof, all required withholding
and deductions.
4.
2006 Compensation Determinations . The
Compensation Committee of the Board (the “Committee”)
shall authorize the following compensation for Eilers for services
as CEO during 2006:
(a)
Annual Bonus . Eilers shall participate in
the Annual Incentive Plan for 2006, and shall be entitled to be
paid a pro-rated portion of the bonus that he would otherwise
receive thereunder for the portion of the calendar year 2006 ending
on the Full Retirement Date; provided that , Eilers shall
not be eligible to defer any portion of this bonus, if any, into
restricted stock units as set forth in such plan. Any such bonus
payout shall be made in February 2007, at the same time as payments
under such plan are usually made.
(b)
Long-Term Incentives . Eilers shall not
participate in the annual Long-Term Incentive Program
(“LTIP”) for 2006, the stock option, restricted stock
and performance award share awards for which are typically made at
the April 2006 Committee meeting. In lieu thereof, and in order to
provide sufficient incentive for Eilers to manage the Company for
the long-term best interests of the Company and its shareholders,
Eilers shall be eligible to receive a lump-sum cash payment, within
20 business days after the Full Retirement Date (or later pursuant
to Section 5(e) below if applicable), equal to a pro-rated portion
of $300,000 for the portion of the calendar year 2006 ending on the
Full Retirement Date (net of any withholding or other taxes
applicable to such payment).
5.
Retention Incentives . As additional
consideration for Eilers agreeing to serve in the roles
contemplated by this Agreement, Deluxe shall make the following
payments to and distributions for the benefit of,
Eilers:
(a)
Retention Bonus . Unless, prior to the Full
Retirement Date, Eilers’ employment with Deluxe is terminated
by Deluxe for “Cause” (as defined below) or by Eilers
for “Good Reason” (as defined below), Deluxe shall pay
to Eilers a lump sum retention bonus equal to 1.5 times his
then-current annual salary (the “Retention Bonus”)
within 20 business days after the Full Retirement Date (net of any
withholding or other taxes applicable to such payment) (or later
pursuant to Section 5(e) below if applicable). If Deluxe terminates
Eilers’ employment for Cause, then he shall forfeit all
rights to receive the Retention Bonus. If Eilers’ terminates
his employment with Deluxe for Good Reason, then he shall be
entitled to receive his Retention Bonus within 20 business days
after his last day of employment (net of any withholding or other
taxes applicable to such payment) (or later pursuant to Section
5(e) below if applicable).
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As
used herein, “Cause” means Eilers’ (i) continued
failure to perform substantially his duties with Deluxe,
including his duties under this Agreement (other than any such
failure resulting from incapacity due to physical or mental
illness or any such actual or anticipated failure after
Eilers’ delivery of a written notice to Deluxe’s
General Counsel that Eilers is terminating his employment for
Good Reason), after a written demand for substantial
performance is delivered to Eilers which specifically
identifies the manner in which Deluxe believes that Eilers
has not substantially performed his duties, (ii) conviction of
a felony, or (iii) willful engagement in (A) other illegal
conduct relating to the business or assets of Deluxe, or (B)
gross misconduct.
“Good
Reason” means (i) Deluxe’s continued failure to perform
substantially its duties under this Agreement after a written
demand for substantial performance is delivered to Deluxe by Eilers
which specifically identifies the manner in which Eilers
believes that Deluxe has not substantially performed its
duties, (ii) Deluxe’s requiring Eilers to be based
at any location more than 50 miles from Deluxe’s current
headquarters location in Shoreview, Minnesota; or (iii) any request
or requirement by Deluxe that Eilers take any action or omit
to take any action that is inconsistent with or in violation of
Deluxe’s ethical guidelines and policies as the same exist
today or as they may be modified hereafter or any professional
ethical guidelines or principles that may be applicable to
Eilers.
(b)
Recognition of Qualified or Approved Retirement
. Effective as of the Full Retirement Date, the
Committee shall recognize Eilers’ retirement as a
(i) “Qualified Retirement” for purposes of
Eilers’ Restricted Stock Award Agreements dated May 4, 2004
and April 27, 2005, his Performance Award Agreements dated
May 4, 2004 and April 27, 2005, and his Nonqualified
Stock Option Agreements dated March 10, 2003, May 4, 2004
and April 27, 2005, and an “Approved Retirement”
under Eilers’ Agreement for Awards Payable in Restricted
Stock Units issued under Deluxe’s Annual Incentive Plan for
plan years 2004 and 2005, and his Nonqualified Stock Option
Agreements dated May 9, 2000 and January 26, 2001, in all
cases, with the Company.
(c)
Medical Coverage . Effective as of the Full
Retirement Date, Eilers shall be deemed to be a “qualified
retiree” under all medical plans currently available to
executive officers of Deluxe. As a “qualified retiree,”
Eilers and his wife would continue to be covered under all medical
plans currently available to executive officers of Deluxe for the
remainder of his and his wife’s lives, subject to any changes
in such plans as may be made generally. Under current plan terms,
costs would be shared by Eilers and Deluxe in the following
proportions: until he reaches age 65, Eilers would bear 65% of the
insurance premiums and Deluxe would bear 35%; at and after age 65,
Eilers would bear 25% and Deluxe would bear 75%.
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(d)
Interpretation . The existence of any
dispute respecting the interpretation of this Agreement or the
Release, or the alleged breach of this Agreement or the Release,
will not nullify or otherwise affect Deluxe’s obligations to
recognize Eilers’ retirement as “Qualified” or
“Approved” pursuant to Sections 5(b) and 5(c)
hereof.
(e)
Tax Compliance . Notwithstanding anything
to the contrary herein, if either Deluxe or Eilers determines in
good faith that any payment or benefit due to Eilers under this
Agreement is subject to Section 409A(a)(2)(B)(i) of the Internal
Revenue Code, as amended (the “Code”) (the six month
distribution delay requirement for certain payments to key
employees of publicly traded companies), such payment or benefit
shall not be made or provided sooner than permitted under such
Section 409A(a)(2)(B)(i) and shall be made or provided on the date
that is the first business day after the date that is six months
after the date of Eilers’ “separation from
service”, as such phrase is defined under Section 409A of the
Code (“Section 409A”) and the guidance and regulations
interpreting Section 409A. Deluxe shall consult with Eilers before
making any such determinations.
6.
Continued Executive Benefits .
(a)
Prior to Full Retirement Date . Until the
Full Retirement Date, Eilers shall be entitled to such medical,
disability, life insurance coverage, vacation, sick leave, holiday
benefits and any other benefits, in each case as are customarily
made available to Deluxe’s executive officers, all in
accordance with Deluxe’s benefits program in effect from time
to time.
(b)
After Full Retirement Date . After the Full
Retirement Date, Eilers shall be entitled only to the benefits set
forth in Section 4, Section 5 and the second sentence of Section
3(a) of this Agreement. For the avoidance of doubt, the parties
acknowledge and agree that Eilers shall not continue to
participate, after the Full Retirement Date, in any of the
following plans, in each case, as amended to date, except with
respect to vested balances of deferred accounts existing in any
such plan as of the Full Retirement Date: (i) Amended and Restated
2000 Employee Stock Repurchase Plan, (ii) Deluxe Corporation
Deferred Compensation Plan (2001 Restatement), (iii) Deluxe
Corporation Executive Deferred Compensation Plan for Employee
Retention and Other Eligible Arrangements, (iv) Deluxe Corporation
Supplemental Benefit Plan, and (v) any executive perquisite plan of
Deluxe, other than as set forth in the second sentence of Section
3(a) hereof.
(c)
Death or Disability . In the event that
Eilers dies prior to the Full Retirement Date, his heirs,
representatives or his estate shall be entitled to the compensation
and benefits described in Sections 4(a) and 4(b) (using the actual
days through his date of death to determi